F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 6 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LLOYD ORVIL PAYLOR,
Petitioner-Appellant,
v. No. 96-6397
(D.C. No. CIV-96-286)
ED EVANS, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Lloyd Orvil Paylor, an Oklahoma state prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On October 20, 1997, we granted petitioner a certificate of probable cause 1 and
ordered respondent to file a brief. 2 Respondent’s brief was filed on November 28,
1997, and petitioner filed a reply brief on December 2, 1997. Being now fully
briefed in the matter, and having carefully reviewed the record, we affirm.
On April 25, 1973, when he was twenty years old, petitioner pled guilty to
murder and was sentenced in state district court to life imprisonment. He did not
appeal the judgment or sentence, which would have required filing a petition for a
writ of certiorari with the Oklahoma Court of Criminal Appeals within ninety
days after the entry of judgment, see Okla. Stat. Ann. tit. 22, § 1051(a).
Petitioner did, however, within the ninety-day period, file with the district court
an “Application for Post-Conviction Relief,” seeking relief from his sentence on
the grounds that (1) he “only got to talk to a Lawyer about ten minutes” before
sentencing and (2) he “wasn’t in a Right State of Mind.” See Appellant’s App.,
1
Because the petitioner’s application for habeas relief was filed on
February 23, 1996, before the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(Apr. 24, 1996), it is a pre-AEDPA certificate of probable cause that is required,
rather than an AEDPA certificate of appealability. United States v. Kunzman,
125 F.3d 1363, 1364 n.2 (10th Cir. 1997).
2
Due to our October 20, 1997 order, “Petitioner’s [still outstanding]
Objection to Order filed September 19, 1997 [vacating an earlier briefing order],
and Motion to Reinstate the [earlier briefing order]” is moot.
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tab 6 at 3, 4. In that document, he asked for the appointment of counsel, see id. at
3, and a copy of the plea transcript, see id. at 4.
On August 15, 1973, without appointing counsel, ordering a transcript, 3 or
conducting a hearing, the district court denied petitioner’s post-conviction
application. The court relied on a “written statement” signed by petitioner
(presumably the “Plea of Guilty: Summary of Facts” form) to conclude that
petitioner “pled guilty of his own free will with full knowledge of his rights.” Id.,
tab 8 at 1. This denial was not timely appealed, which would have required the
filing of a petition in error with the Court of Criminal Appeals within thirty days,
see Okla. Stat. Ann. tit. 22, § 1087. Although the order indicates on its face that
it was mailed to petitioner on the same day it was entered, petitioner claims he
never received a copy of this ruling from the court. See Appellant’s App., tab 31
at 3, 6.
The record is less clear as to what transpired after the expiration of both
appeal periods (i.e., the time to appeal the judgment and sentence and the time to
appeal the denial of the post-conviction application). In the early months of
1974, petitioner made a number of additional filings in the state district court, 4
3
The court had before it the state’s response to petitioner’s application,
which stated in reference to the request for a transcript, “[t]here was no record in
the case for the reason that there was no trial.” Appellant’s App., tab 7 at 1.
4
There is a pleading entitled “Petition for a Writ of Habeas Corpus Ad
(continued...)
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which appear to have been ultimately treated collectively as an effort to appeal
the August 15, 1973 denial of his post-conviction application. That “attempted
appeal” was dismissed on April 16, 1974, as untimely. See Appellant’s App., tab
15.
In June of 1974, petitioner filed in the state district court an “Application
for Writ of Habeas Corpus and/or Leave to Withdraw Plea of Guilty” and another
“Application for Post-Conviction Relief.” Ultimately prompted by a writ of
mandamus from the Court of Criminal Appeals, the district court denied the post-
conviction application in December of 1974. The court again relied only on the
“Plea of Guilty: Summary of Facts” form to conclude that petitioner’s guilty plea
was constitutionally sound. It also cited petitioner’s initial post-conviction
4
(...continued)
Subjiciendum and/or A Application for Post Conviction Relief, and/or A
Application for Post Conviction Appeal,” Appellant’s App., tab 9 at 2, sworn to
by petitioner on February 4, 1974, and challenging the voluntariness of his plea
and the adequacy of counsel. The docket of the state district court does not
reflect the filing, but it does indicate that the district attorney filed a response on
February 18, 1974. See Appellant’s App., tab 27 at 2. That response was entitled
“Response to Application for Post-Conviction Relief,” and called to the court’s
attention petitioner’s earlier application and the court’s August 15, 1973 denial.
See id., tab 10. On March 5, 1974, having “not heard from Court on ‘Recent’
Writ” (referring presumably to his February 4, 1974 pleading), petitioner filed a
“Notice of Intent to Appeal to Court of Criminal Appeals.” Id., tab 11 at 1. Two
weeks later, petitioner filed another “Notice of Intent to Appeal to Court of
Criminal Appeals,” id., tab 12 at 2, that seems to refer by date to two intervening
court orders which appear neither in the record nor on the district court docket
sheet. In his filings, petitioner continued to seek appointment of counsel and a
copy of the plea transcript.
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application, filed and denied in the summer of 1973, and found that it was not
required to entertain another application raising “substantially the same issues.”
Id., tab 24 at 1.
Over twenty years later, in January of 1995, following petitioner’s
reincarceration after a period of federal incarceration and the subsequent
revocation of his parole, petitioner, represented by current appellate counsel,
again filed a habeas petition in state district court. The court declined jurisdiction
on the ground that the sentencing court was one of competent jurisdiction.
Petitioner then filed the same petition in the Court of Criminal Appeals. Having
“no disagreement” with the district court, the appellate court stated that
“[p]etitioner has not established that his confinement is unlawful or that he is
entitled to immediate release, a necessary prerequisite to the granting of a writ of
habeas corpus” and denied the petition. Id., tab 29 at 1-2. It was apparently only
with respect to these 1995 filings that the state court or the petitioner had a copy
of the plea transcript. According to the record, a certified copy was filed in the
underlying criminal case in December of 1994, having been ordered for the first
time in 1980 by current appellate counsel when he was first retained by petitioner
to evaluate his post-conviction case.
In February of 1996, petitioner filed his habeas petition in federal district
court, again represented by current appellate counsel. The district court reached
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the merits of petitioner’s claims and denied relief. Petitioner now appeals, raising
three issues: (1) whether his guilty plea was knowing and voluntary, (2) whether
he was denied his right to direct appeal, and (3) whether his plea violated a state
statute requiring every plea to be “oral,” see Okla. Stat. Ann. tit. 22, § 514. We
review de novo the district court’s decision to deny habeas relief. McIntosh v.
United States Parole Comm’n, 115 F.3d 809, 813 (10th Cir. 1997).
As an initial matter, we must address the issue of state procedural default,
which respondent raises in its appellate brief, just as it did in its initial response
to the petition in district court. In addressing respondent’s procedural default
argument in the district court, the magistrate concluded that, based on petitioner’s
assertion that the unconstitutional conditions of his confinement effectively
denied him access to the courts during the relevant period, the court would
“assume” that petitioner had established cause for his procedural default and
address the merits of the petition. Respondent failed to object to the magistrate’s
report and recommendation, and this failure constitutes waiver of the procedural
default argument. See Maes v. Thomas, 46 F.3d 979, 984 (10th Cir. 1995).
Proceeding to the merits, petitioner’s first contention is that his guilty plea
was unknowing and involuntary. He claims that he was not adequately advised of
the constitutional rights he was waiving and the material elements of the offense
with which he was charged, and that his appointed counsel performed
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ineffectively in advising him with respect to his plea. “Whether a plea is
voluntary is a question of federal law subject to de novo review.” Laycock v.
New Mexico, 880 F.2d 1184, 1186 (10th Cir. 1989). Having carefully reviewed
the record, we have little to add to the district court’s recitation of the applicable
law and its analysis, except to answer several specific points raised in petitioner’s
brief.
First, petitioner alleges that appointed counsel advised him incorrectly
regarding punishment by indicating on the “Plea of Guilty: Summary of Facts”
form that the minimum imprisonment was “none.” Appellant’s Br. at 14.
Although arguably an ambiguous response when viewed in isolation, it is clear
from the transcript of the plea hearing that petitioner knew he was facing a
mandatory sentence of life imprisonment. See Appellant’s App., tab 26, ex. A at
4 (where petitioner responds affirmatively to the court’s inquiries as to whether
he knows the penalty for murder is life imprisonment and whether he knows that,
on a plea of guilty, that is the only sentence the court can give him); id. at 7
(where petitioner indicates that he heard the district attorney’s recommendation of
life imprisonment and that it was the recommendation he expected to hear, and
where petitioner indicates, after hearing the recommendation, that he still wants
the court to sentence him and does not wish to withdraw his plea).
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Second, petitioner argues that the trial court failed in its duty to properly
advise him of his appellate rights, citing Oklahoma statutes and cases as support.
On habeas review, however, we look only to whether a federal right was violated.
See Hardiman v. Reynolds, 971 F.2d 500, 505 n.9 (10th Cir. 1992). Accordingly,
we do not consider petitioner’s state law argument further.
Petitioner also contends that he was denied “his constitutional rights to an
attorney for appeal, a transcript for appeal and a first appeal as a matter of right.”
Appellant’s Br. at 20 (upper case and bolding deleted). There is no question that
the sixth amendment right to counsel “extends to a defendant’s first appeal as of
right.” Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir. 1991). A trial transcript
is also a matter of right in that instance. See Ruark v. Gunter, 958 F.2d 318, 319
(10th Cir. 1992) (citing Griffin v. Illinois, 351 U.S. 12 (1956)). The problem in
this case is that defendant did not file a direct appeal. Following his guilty plea,
petitioner was advised by the court that he had the right to seek review of his
judgment and sentence by filing a petition for a writ of certiorari in the Court of
Criminal Appeals and that such a petition had to be filed within ninety days. See
Appellant’s App., tab 26, ex. A at 8.; see also id., tab 4 at 2. In response to the
judge’s direct inquiry, petitioner said that he understood. See id., tab 26, ex. A at
8; see also id., tab 4 at 2. Notwithstanding these instructions, petitioner did not
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seek certiorari in the Court of Criminal Appeals, but instead filed with the trial
court an application for post-conviction relief.
Petitioner now argues that this post-conviction application, filed within the
appeal period, should have been seen as an unartful attempt to appeal, see
Appellant’s Br. at 22, or at the very least, gave notice to both the trial court and
his court-appointed attorney that he wished to appeal, thus giving rise to a duty to
respond to the request for counsel contained therein, see id. at 23. We do not
agree. “Normally, when a defendant pleads guilty, he has foreclosed his right to
appeal. If a claim of error is made on constitutional grounds, which could result
in setting aside the plea, or if the defendant inquires about an appeal right,
counsel has a duty to inform him.” Laycock, 880 F.2d at 1188 (citation omitted).
In this case, petitioner did not give any indication at the plea hearing that
he wished to appeal. There is nothing in the record to suggest that petitioner ever
inquired about his appeal right or expressed his desire to appeal, and there is no
evidence that counsel knew or should have known of any grounds for an appeal.
Indeed, although there is nothing in the record to indicate that counsel had
withdrawn from the case, there is no evidence that petitioner sent him a copy of
the July 19 post-conviction application, which he now claims provided notice of
his desire to appeal. Although the trial court received the filing, nowhere in that
document does petitioner claim he is trying to appeal. On the contrary, in
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response to a question on the form as to whether he had taken an appeal,
petitioner simply responded “no.” Furthermore, appeals are not filed with the
district court, but rather with the court of criminal appeals, as petitioner was told.
Under these circumstances, we cannot conclude that petitioner’s constitutional
rights were violated when the state court failed to treat the post-conviction
application as a request for the appointment of counsel to appeal. 5
Petitioner suggests in his brief that prison officials played a role in the
alleged denial of his appeal right by his statement that “upon inquiry, [he] was
furnished the only legal form the prison officials had, a copy of a Post-Conviction
Application.” Appellant’s Br. at 21; see also id. at 24. As we have stated above,
however, there is nothing in the record to indicate that petitioner ever expressed
to prison officials or otherwise a desire to appeal.
Finally, petitioner argues that because he never actually uttered the word
“guilty,” his plea is void as violative of a state statute requiring that “[e]very plea
must be oral,” Okla. Stat. Ann. tit. 22, § 514. We agree with the district court
5
Petitioner’s invocation of Haines v. Kerner, 404 U.S. 519, 520 (1972)
(requiring liberal construction of pleadings filed by pro se litigants in determining
whether they state a claim), does not change our analysis. Pro se litigants are not
excused, by virtue of that rule of liberal construction, from following the same
rules of procedure that govern other litigants. See Green v. Dorrell, 969 F.2d
915, 917 (10th Cir. 1992) (failure to comply with federal court’s local rules).
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that this state law argument is not appropriate for habeas corpus review. See
Hardiman, 971 F.2d at 505 n.9.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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Paylor v. Evans
Combined Opinion